[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG). Opinions expressed here are her own and do not necessarily reflect those of MRG.]

The African region has long been perceived as a recipient, not a creator, of international human rights law. But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence. Africa should be recognized as a generator of innovative human rights law. Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law.

The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances. It also takes a conceptual leap forward in its treatment of culture and tradition. Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South. It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture. The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography.

Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights. (more…)

In my last post, I introduced my recent article rethinking the concept of responsibility to protect. Today, I consider how the discussion of R2P often obscures the reality of how states go about choosing to intervene by speaking of duties and responsibilities. Some commentators have expressed concern about the selective nature of R2P or about the disappointment of R2P in Syria. But this disappointment simply glosses over the real problem, which is that states simply have no responsibility or duty in these circumstances—rather, they have a choice, which they exercise selectively based on myriad factors.

R2P lumps together two distinct responsibilities that actually have very different foundations. First, the responsibility of a state to its own people; and second, the responsibility of all states to people victimized in other states.

The responsibility of a state for its own people reflects well-established understandings about the nation state—it is an essential aspect of the social contract that the state provides basic human security to the people within its borders. Although state practice often violates these principles (creating the asserted need for intervention), states have widely accepted the basic responsibility to their own people. For instance, no state contested this responsibility in the 2005 United Nations World Summit that affirmed certain principles of R2P.

A responsibility to protect between a state and its people primarily begins with the negative right to be left alone, the right to enjoy life without interference from the state. The social contract, however, includes more than this because within a political society individuals have a claim to be kept safe—for the state to ensure certain conditions of safety to individuals and their property. All governments provide some form of protection from private actors through their criminal justice systems. This demand, however, is inherently a political one within the state. It concerns the type of public resources that should be allocated to crime prevention, law enforcement, incarceration, and rehabilitation.

Importantly, even within the most liberal, rights-respecting countries, there are not enforceable rights to safety or protection from private actors. The United States Supreme Court has repeatedly affirmed that the government does not have an affirmative obligation to protect individuals, even though it may have an obligation to refrain from harmful activities. Instead, the political process determines what the state provides with respect to protection—increased security is balanced against civil liberties, not to mention costs.

The second responsibility between a state and people in other states lacks this political foundation. The claim of victims in other states to protection is essentially a positive claim for rescue from the harms inflicted by their government or by private actors while their government stands by. Consider that victims in Syria have no particular political claim to the assistance of France, England, or the United States. Their plight may present a moral demand for assistance and political pressure may mount through interest groups, the media, international organizations, and former Presidents. Yet the claims of foreigners will invariably present a different calculus than domestic claims and rightly so.

The responsibility to protect people in other states is a positive claim and positive claims require resources (diplomatic, humanitarian, and military). Although proponents of R2P often prefer to shift the language away from “rights,” at its foundation R2P depends on having some conception of the “rights” of people to protection from other states. It is not about leaving the Syrians alone, but rather protecting them from harm. Yet what precisely this right to assistance includes in Syria or elsewhere, no one is able to say.

Even accepting a basic moral responsibility, there remain difficult questions about what action best respects rights and what will serve to promote human rights and security overall. The responsibility will always be contingent on political, military, and other calculations and will be uncertain in any particular instance. Calling this choice a responsibility dilutes the meaning of rights and duties and obscures the actual mechanisms for promoting intervention.

[Robyn Curnow is a graduate of the University of Melbourne and the University of Queensland. She works as a lawyer in Melbourne.]

Reactions to the prosecution and sentencing of three members of Pussy Riot in August this year have revealed sharp disparities in the ways different countries’ legal systems protect peoples’ religious sensibilities. What they have also exposed is a spectrum of tolerance across national jurisdictions for criminal laws designed to preserve public order.

Granted, the level of unrest triggered by Pussy Riot has been relatively contained to date: vandalism of various sites in Moscow and a wave of civil litigation against Pussy Riot, including a claim by a Novosibirsk woman seeking damages for “deep moral suffering” after viewing footage of the performance by the group in the Christ the Saviour Cathedral (several thousand kilometres away in Moscow). And it is certainly worth questioning whether the performance itself would have gained as much exposure as it did in Western media had the official reaction been a fine or warning instead of a criminal prosecution. Pyotr Verzilov, the husband of one of the defendants, provided a partial answer to this question when he told RIA Novosti on 22 August: “…the Pussy Riot story and the court case is very easy to understand for the West. Pussy Riot is basically a machine placed inside the media.”

Indeed, while many commentators have questioned the severity of the sentence imposed by the Khamovniki District Court on 17 August, few have grappled with the offence as it was characterised by the prosecution or analysed the evidence presented to support it. The reason for this is understandable: not only is the footage of the offending conduct barely comprehensible, but the particulars of the charge are not accessible to the mainstream English speaking media. So, because (or perhaps in spite) of the fact that few legal commentators know how the prosecution case was put, the most interesting questions have not yet been asked.

One person started asking before the sentence was passed. In her article “The Pussy Riot Act” (The St Petersburg Times on 8 August 2012), Michele A. Berdy provided a translation of the indictment for non-Russian speakers, as well as some useful observations about the act of “desecration”: “…it was the worst of the pre-revolutionary Russian religious crimes and carried the death penalty for centuries.” Berdy also translated the particulars: “hooliganism, that is, a gross violation of public order expressing a clear disrespect for society, committed on the grounds of religious hatred or enmity or hate against a particular social group by a group of persons by prior agreement.”

This means that the charge was framed contrary to article 213.2 of the Criminal Code of the Russian Federation. The offence provision, which appears in Section IX, entitled ‘Crimes Against Public Security and Public Order’, may be translated as follows:

a gross violation of the public order expressing a clear disrespect for society

with the use of weapons or articles used as weapons

motivated by political, ideological, racial, national or religious hatred or enmity, or for motives of hatred or enmity in relation to a particular social group.

Prior to its amendment in 2003, the offence provision required the conduct to be “accompanied by violence against citizens or the threat thereof, or the destruction or threat of destruction of property of another” (Law and Legal System of the Russian Federation, 2009, p 586). The current version of the law, however, appears to characterise the second and third elements as alternatives.

Nevertheless, the absence of weapons, or articles used as weapons, by the defendants in this case appears to bring their conduct within the category of “petty hooliganism” or “Disorderly Conduct” under Article 20.1 of the Code of Administrative Offences of the Russian Federation. This alternative was canvassed by Vladimir Lukin, Russia’s Human Rights Commissioner (RIA Novosti, 23 August 2012) when he described the actions of the defendants as a “serious misdemeanour”, rather than a crime. Article 20.1 provides for the imposition of a fine or an administrative arrest for a period up to 15 days for “violation of public order in the form of open disrespect of the public accompanied by foul language in public places, abusive pestering of people or destruction or damage caused to other people’s property.”

It is possible that the “serious misdemeanour” alternative was considered by the parties in this case, but ultimately the indictment alleged an aggravated form of hooliganism, contrary to article 213.2 of the Criminal Code because – according to the translation of the indictment by Berdy – it was “committed by a group of persons in by prior agreement.” This increased the maximum penalty to 7 years imprisonment. To date, the most notorious breach of a similar provision was the illegal landing, in 1987, of a Cessna 172 in Red Square by 19 year old German national Mathias Rust, for which he was sentenced to four years’ imprisonment.

Berdy has also reviewed documents, described as witness testimony, which tell how the conduct was “unbefitting, and in fact violated all imaginable and unimaginable, commonly accepted rules of behaviour in a church. They put on clothing that clearly and obviously contradicted church rules. Then they started to satanically jerk around, jump, run, kick their legs up, twirl their heads while they shouted very insulting, blasphemous words.” According to Berdy’s translation, this led to a “violation of the feelings and faith of many Orthodox Christians and a defilement of the spiritual basis of the state.”

The statements by the Pussy Riot members in their defence focussed on two points: first, their lack of intention to cause harm, in the form of subjective feelings of hurt and insult among the worshippers present in the cathedral, and second that their motivations were political rather than religious. According to one of the statements read out by the defendants’ lawyers during the proceedings, the object of the protest was the support of the Orthodox Church’s Patriarch Kirill for President Putin (as opposed to the church itself).

In other words, the defendants were not motivated by religious hatred, but rather “a desire to persuade church leaders not to meddle in politics.” With this statement, the defendants blended the religious and political so thoroughly that the distinction between them all but disappeared – which seems to be exactly the point they say they were trying to make.

By contrast, the prosecution stressed the religious significance of the performance: “They set themselves off against the Orthodox world and sought to…

I understand the rationale behind the Obama Administration’s policy of engagement with the U.N. Human Rights Council. So I understand why U.S. delegates subjected themselves to sharp and sometimes ridiculous criticism by other states during a session yesterday on United States human rights practices.

A delegation of top officials, led by Assistant Secretary of State Esther Brimmer, gave diplomats at the U.N. Human Rights Council a detailed account of U.S. human rights shortcomings and the Obama administration’s efforts to redress them. It marked the first time the United States has subjected its rights record to examination before the Geneva-based council, as part of a procedure that requires all states to allow their counterparts to grade their conduct.

Several delegations camped out overnight to be first in line to criticize Washington, with the initial few speakers including Cuba, Iran and Venezuela.

…

The United States’ most vociferous critics – Cuba, Iran, Nicaragua, North Korea and Venezuela – opened the session with a string of highly critical accounts of U.S. policies, denouncing detention policies from Abu Ghraib to Guantanamo Bay and characterizing the embargo on Cuba as an act of genocide. Cuba and Nicaragua also called for the release of five Cuban intelligence officials held by U.S. authorities on espionage charges and for the prosecution of Luis Posada Carriles, the alleged mastermind of the 1976 terrorist bombing of a Cuban airliner.

“The United States of America, since its very origin, has used force indiscriminately as the central pillar of its policy of conquest and expansionism, causing death and destruction,” said Nicaragua’s envoy, Carlos Robelo Raffone. “We would like to forget the past . . . but unfortunately, the United States of America, which pretends to be the guardian of human rights in the world, questioning other countries, has been and continues to be the one which most systematically violates human rights.”

All of this is a bit hard to swallow (do we really need to hear from North Korea on human rights? And would human rights really be better off if, say Nicaragua or Venezuela was guarding it?). But it might be worth swallowing hypocrisy if, say, down the road, U.S. criticisms of other countries had some impact or influence.

But I think it is fair to say that the UN Human Rights Council is almost completely a political show without any serious policy impact or legal significance. There is no evidence that states change their behavior due to the HRC’s criticism. Does anyone think Cuba will suddenly release political prisoners due to HRC criticism? Moreover, as far as I can tell, the HRC sessions use human rights law as political slogans, but nothing more. No one attempts to seriously apply legal principles to measure human rights behavior. If they did, they wouldn’t be able to claim with a straight face that the embargo on Cuba is “genocide.”

The HRC has no legally binding authority (or much moral authority) anyway. Mostly, it just serves to further damage the U.N.’s image in the United States, a dangerous thing to do now that the Republican House is back in charge of U.N. funding.

I’ve heard that the docket for the European Court of Human Rights is out of control, but a backlog of 120,000* cases is a little ridiculous.

There is no doubt about the seriousness of the situation in Strasbourg. Jean-Paul Costa, president of the European Court of Human Rights, has referred to it as extremely disturbing. The parliamentary assembly of the Council of Europe, which is responsible for the institution, has said the court threatens to suffocate.

A count late last year showed ‘Strasbourg’ has a backlog of over 119,300 cases, all complaints from European citizens who feel their human rights have been in some way violated. They did not get their way in their home countries and decided to plead their case at a higher level. Strasbourg is their last resort.

Reforms are planned. But given the size of the backlog, serious reforms are needed.

The Academic Council on the United Nations System (ACUNS), in partnership with ASIL and the One Earth Future Foundation, have released a report entitled: “Suppressing Maritime Piracy: Exploring the Options in International Law”. It is a useful report, and it is the product of a very smart and knowledgeable group of international law experts including friends of this blog like John Bellinger, Eugene Kontorovich, David Glazier, and Beth Van Schaack. But like many of these committee panel reports, it doesn’t really come to any conclusion or consensus on the legal problem of how to encourage nations to punish piracy (at least not as far as I can tell). But it is at least a start in the conversation. My own view is that nations just won’t have the right incentives here and that ultimately, this is going to be dealt with by better self-help mechanisms on merchant ships. But I defer to the judgments of these experts, whose ideas a worth reading.

I thank Kevin for his extensive and thoughtful response to my post. You touched on many issues which I hope to address systematically in subsequent posts, such as the illegality of the settlers presence. I’m going to try to avoid getting into those issues right now, since this post (like yours before it) is already quite long. I apologize in advance for typos.

Two points of clarification. What prompted my post is a comment by Sen. Mitchell that the administration wants to see a freeze in settlement growth as measured by births. If, as you suggest, the settlers accepted increasingly crowded conditions and their population continued to grow apace, I do not think this would be considered as satisfying a settlement freeze. If the Administration made clear that Jewish population growth through births was not a problem — they don’t mind if the Jewish population doubles so long as the live on top of each other — I would agree with my critics that this is not about genocide/ethnic cleansing. The problem is Jews not Jewish houses. The Palestinians want a state free of Jews, not of Jewish-built houses. Note that all peace plans contemplate the removal of the Jews, not of the roads, houses and other facilities they have built. This is the significance of Mitchell’s comment about births. If there are still births, that means the screws have not been twisted tightly enough.

Second, I don’t want to sell the Genocide point too strongly because I agree that it might “just” be ethnic cleansing. I’m quite open to the possibility that this is not the actus reus of genocide, but rather just flirting with it. Why that makes any liberal-minded person feel better is beyond me, as we well explore below as I engage some of Kevin’s points, grouped into two headings: 1) does it prima facie violate the Genocide Convention; 2) is there some warrant or excuse for sometimes violating it?

1. Human Rights Originalism.

We are not discussing whether Israel can forcibly remove them for military necessity – though by the way, I think invocations of such Art, 49 provisions applied to only one ethnicity would be highly suspect these days. We are talking about whether the U.S. can seek their removal for diplomatic reasons.

You argue that the Genocide Convention’s ban on “measures designed to prevent births” is limited to the kind of methods used in World War II by the Germans. That’s a fair point and not one that I would rule out. It depends on whether we are human rights treaty Originalists or Textualists. I know many of my conservative friends would be delighted to find Originalism alive and well in international law. But keep in mind that the same kind of questions arises with the Geneva Convention itself. An originalist approach to both treaties would say neither the settlements nor the ban on their natural growth violates international law….

The Council resolution is significant less for what it says than for the fact of its adoption, which reflects the growing interconnections between the worlds of climate change and human rights. The resolution notes that “climate change-related effects have a wide range of implications … for the enjoyment of human rights” and “affirms” that “human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.” But the Council’s only concrete decision was to hold a panel discussion on climate change and human rights next year.

I’m all in favor of letting a thousand flowers bloom in the effort to combat climate change, and can understand the appeal of human rights approaches. . .

March 1, 2015Guest Post: The Mirage of Hybrid Justice in Africa?[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, ...

February 17, 2015The Absence of Practice Supporting the "Unwilling or Unable" Test
Regular readers of the blog know that one of my hobbyhorses is the "unwilling or unable" test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable...